Two decisions handed down by the Supreme Court last month held that government actions were unconstitutional. In Kennedy v. Bremerton School District, the Court held that a public school district’s instruction to a high school football coach that he could not pray on the field after each game violated the First Amendment. A New York State law limiting individuals from carrying concealed weapons was found, in New York State Rifle & Pistol Ass’n Bruen, to run afoul of the Second Amendment. Central to both those decisions was that they involved state action – a government body telling individuals what they could not do. For private employers, neither of the Supreme Court’s recent decisions proscribe their ability to establish workplace policies or manage their employees because the Bill of Rights applies to the public sector, and not private employers.
Private employers can generally set their own workplace policies, which may impose obligations on employees or restrict employees’ behavior in the workplace or as a representative of the employer. In doing so, however, private employers need to comply with federal, state and local laws that may affirmatively obligate them to adopt certain workplace policies (such as New York State’s mandate that employers have a sexual harassment policy that includes specific provisions), or may preclude them from imposing certain obligations (such as a state law that prohibits employees from being required to work more than a certain number of hours without a meal break). Employers’ policies can be broader or more proscriptive than legal requirements, but they must minimally comply with the law.
Policies on Prayer in the Workplace
Therefore it’s not the First Amendment, but Title VII of the Civil Rights Act of 1964 at the federal level and comparable state and local laws that limit private employers’ ability to create policies related to prayer in the workplace. Courts have held that employers need to accommodate an employee’s request to pray during the workday, provided doing so would not impose an undue hardship. But employers can prohibit employees from proselytizing in the workplace, and they may have legitimate business reasons to establish policies, particularly with regard to the conduct of supervisory employees, that limit the place where or time when an employee prays at work.
Any private employer policy pertaining to prayer generally needs to be applied consistently. An employer cannot, for example, permit prayer by some religions and not permit prayer for others. Private employers should get legal advice before developing any policies with regard to prayer at work.
Policies Limiting Weapons at Work
As for weapons, private employers can place limits on when and where employees carry or store them in the workplace, absent a contradictory state or local law. For example, Florida law entitles individuals to keep a legally-owned firearm locked inside a private motor vehicle in their private employer’s parking lot, and prohibits private employers from even asking about whether the weapon is there. Florida’s law is relatively new, but Texas has had a similar law for more than a decade. In such states, employers can still prohibit employees from bringing a weapon into the workplace, but the proscription does not extend to the employer’s parking lot.
Other states, including New York, Connecticut and New Jersey, have no comparable limitation. In those jurisdictions, private employers can prohibit employees from carrying or storing weapons while working. Employers in those states can also prohibit weapons from being stored anywhere on an employer’s property, including locked in a personal vehicle in the parking lot. Multi-jurisdiction employers should consult with legal counsel when developing any policy related to weapons in the workplace to ensure the policy accounts for variations in legal rights across states.
By Tracey I. Levy
